Long v Fast Fours and Prestige Limited - Reference No. MVD 16/16 (Auckland) [2016] NZMVDT 31; [2016] NZMVT Auckland 31 (21 March 2016)

Last Updated: 19 April 2016

BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL

[2016] NZMVT Auckland 31

Reference No. MVD 16/16

IN THE MATTER of the Motor Vehicle Sales Act 2003

AND

IN THE MATTER of a dispute

BETWEEN HEANG LONG

Purchaser

AND FAST FOURS AND PRESTIGE LIMITED

Trader

MEMBERS OF TRIBUNAL
Mr C H Cornwell, Barrister & Solicitor, Adjudicator
Mr S D Gregory, Assessor

HEARING at Auckland on 15 March 2016

DATE OF DECISION 21 March 2016

APPEARANCES
Mr H Long, the purchaser
Miss J Long, purchaser’s daughter and witness
Mr E Mumini, witness for the purchaser
There was no appearance by the trader

DECISION

1.Fast Fours and Prestige Limited shall pay Mr Long $8,352-57 immediately.

2. Mr Long’s claim for the cost of replacing the vehicle’s clutch and differential LSD unit is dismissed.

REASONS

Background

[1] On 13 November 2014 Mr Long (“the purchaser”) bought a 2005 Maserati Quattroporte registration HBD337 (“the vehicle”) from Fast Fours & Prestige Limited (“the trader”) for $42,995. The vehicle was used by Mr Long’s daughter’s partner, Mr Mumini.

[2] The vehicle has a number of faults which the purchaser considers amount to a failure of the vehicle to comply with the guarantee of acceptable quality in the Consumer Guarantees Act 1993 (“the Act”).

[3] On 15 September 2015 following the hearing of the purchaser’s application the Tribunal made the following order by consent:

“That Fast Fours & Prestige Limited (“the trader”) shall, within one month from the date of this Order, at the trader’s cost, arrange to have each of the following items of work carried out on the 2005 Maserati Quattroport registration HBD337 (:”the vehicle”) for Mr Heang Long (“the purchaser”) :

[a] Rectify the vehicle’s tyre pressure monitoring system;

[b] Replace the vehicle’s grill with a new Maserati grill;

[c] Replace the indicator self-cancelling control unit;

[d] Replace the wing mirror switch;

[e] Rectify the vehicle’s stereo and steering wheel function;

[f] Rectify the electric parking brake;

[g] Remedy the broken control buttons in the vehicle’s dash.”

[4] The purchaser’s witness, Mr Mumini, has informed the Tribunal that the trader has failed to rectify items [b], [c], [f] and [g] of the Consent Order. The purchaser has filed a fresh application to seek the Tribunal’s order that the trader pays the cost of rectifying the unresolved faults. The purchaser also claims that in the course of carrying out repairs to the vehicle the trader has damaged the driver side airbag, damaged the clutch and the limited slip differential in the vehicle and also seeks the estimated costs of rectifying those items.

[5] The trader, after being sent notice of the hearing and a reminder, failed to attend the hearing on 15 March 2016 without seeking an adjournment.

[6] Prior to the commencement of the hearing the Tribunal appointed Mr Gregory as the Tribunal’s assessor and he took the oath required of an assessor by Schedule 1, cl 10(2) of the Motor Vehicle Sales Act 2003. As an assessor Mr Gregory assisted the adjudicator but the application was determined by the adjudicator alone.
Issues

[7] The issues raised by this application are:

[a] What is the reasonable cost of rectifying each of items [b], [c], [f] and [g] of the Consent Order which the trader has failed to rectify within the time stipulated in that order?

[b] Whether the vehicle’s new faults amount to a failure of the vehicle to comply with the guarantee of acceptable quality in s6 of the Consumer Guarantees Act 1993 and if so has the purchaser established the existence and reasonable cost of the vehicle’s new faults?

Issue [a]: What is the reasonable cost of rectifying each of items [b], [c], [f] and [g] of the Consent Order which the trader has failed to rectify within the time stipulated in that order?

Relevant law

[8] Section 18(2) of the Act provides as follows:
(2) Where the failure can be remedied, the consumer may ¾
(a) require the supplier to remedy the failure within a reasonable time in accordance with section 19:
(b) where a supplier who has been required to remedy a failure refuses or neglects to do so, or does not succeed in doing so within a reasonable time, ¾
(i) have the failure remedied elsewhere and obtain from the supplier all reasonable costs incurred in having the failure remedied; or
(ii) subject to section 20, reject the goods in accordance with section 22.

Application of law to facts
[9] The trader consented to repair items [b], [c], [f] and [g] in the Consent Order dated 15 September 2015 and has, according to the purchaser’s witnesses Mr Mumini and Miss Long, failed to do so.

[10] The purchaser has been unable to get a price to repair the electric parking brake (item f) but has obtained a written quote from Continental Cars for each of the other three items as follows:
(i) Item [b]: replace vehicle’s grill: $2,098 plus GST or $2,412-70;
(ii) Item [c]: replace indicator self–cancelling control unit $4,121 plus GST and $540 labour plus GST or $5,360-15;
(iii) Item [g]: rectify broken control buttons in the dash $234-72;
a total of $8,007-57.

Conclusion on issue [a]

[11] The Tribunal will order the trader to pay the purchaser $8,007-57 for the cost of fixing the items it failed to rectify in terms of the Consent Order dated 15 September 2015.

Issue[b]: Whether the vehicle’s new faults amount to a failure of the vehicle to comply with the guarantee of acceptable quality in s6 of the Consumer Guarantees Act 1993 and if so has the purchaser established the existence and reasonable cost of the vehicle’s new faults?

Relevant law

[12] Section 6 of the Act imposes on a supplier and the manufacturer of consumer goods "a guarantee that the goods are of acceptable quality." Section 2 of the Act defines "goods" as including "vehicles.”

[13] The expression "acceptable quality" is defined in s 7 as follows:

7 Meaning of acceptable quality
(1) For the purposes of section 6, goods are of acceptable quality if they are as—
(a) fit for all the purposes for which goods of the type in question are commonly supplied; and
(b) acceptable in appearance and finish; and
(c) free from minor defects; and
(d) safe; and
(e) durable,—
as a reasonable consumer fully acquainted with the state and condition of the goods, including any hidden defects, would regard as acceptable, having regard to—
(f) the nature of the goods:
(g) the price (where relevant):
(h) any statements made about the goods on any packaging or label on the goods:
(ha) the nature of the supplier and the context in which the supplier supplies the goods:
(i) any representation made about the goods by the supplier or the manufacturer:
(j) all other relevant circumstances of the supply of the goods.
(2) Where any defects in goods have been specifically drawn to the consumer's attention before he or she agreed to the supply, then notwithstanding that a reasonable consumer may not have regarded the goods as acceptable with those defects, the goods will not fail to comply with the guarantee as to acceptable quality by reason only of those defects.
(3) Where goods are displayed for sale or hire, the defects that are to be treated as having been specifically drawn to the consumer's attention for the purposes of subsection (2) are those disclosed on a written notice displayed with the goods.
(4) Goods will not fail to comply with the guarantee of acceptable quality if—
(a) the goods have been used in a manner, or to an extent which is inconsistent with the manner or extent of use that a reasonable consumer would expect to obtain from the goods; and
(b) the goods would have complied with the guarantee of acceptable quality if they had not been used in that manner or to that extent.
(5) A reference in subsections (2) and (3) to a defect means any failure of the goods to comply with the guarantee of acceptable quality.

[14] In Stephens v Chevron Motor Court Limited [1996] DCR1, the District Court held that the correct approach to the Act was first to consider whether the vehicle was of “acceptable quality”. If the vehicle was not of acceptable quality, the next point to consider was whether the purchaser required the trader to remedy any faults within a reasonable time in accordance with s 19 of the Act. If the failure to comply with the guarantee of acceptable quality was of a “substantial character” within the meaning of s 21, or if the faults cannot be remedied, the Tribunal is directed to ask whether the purchaser exercised her right to reject the vehicle within a reasonable time.

Application of law to facts

[15] The purchaser’s witness, Mr Mumini told the Tribunal that when the vehicle was returned to him the air bag failure warning lamp was on. Continental Cars have investigated that and advise that they have scanned the vehicle which has shown a driver’s airbag fault. They report that the driver’s side airbag requires removing and the clock spring and electrical connections require testing. Continental Cars have quoted $300 plus GST to do this.

[16] Mr Mumini says the vehicle also makes a noise when turning left or right at low speeds. Continental Cars have informed the purchaser that they suspect this may be caused by clutch shudder or limited slip differential clutch failure and that further investigation is required to determine the cause of the fault. That investigation has not taken place. Although Continental Cars have given the purchaser a quote for replacing both the clutch and the differential LSD unit there is no reliable evidence that either of these units require replacement and the noise may be caused by the vehicle not having been driven and may be resolved by replacing the oil in the differential. Without a more definitive report as to what is wrong (if anything) with the clutch/ LSD differential, I am not prepared to make a finding that these items are faulty and need replacing at a cost, with parts and labour of $5,358-20 for the clutch and $5,948-29 for the LSD differential.

Conclusion on issue [b]

[17] I consider the repairs to the driver’s side airbag warning lamp are probably a consequence of the trader’s unsuccessful attempt to rectify the indicator switch assembly, were caused by the trader or its repairer, and the cost of repairing the faults of $300 plus GST or $345 should be paid by the trader. I am not satisfied that the purchaser proved the clutch or differential need to be replaced and the purchaser’s claim for those two items is dismissed.

DATED at AUCKLAND this 21st day of March 2016

C. H. Cornwell
Adjudicator